Dahlia Lithwick. "Will Trump’s Rule of Law Be Our Rule of Law?" Slate.com Nov. 9, 2016 http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_threat_to_the_rule_of_law.html.
Subhed: "The fate of the entire legal apparatus of government is in the balance."
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For those of us who believe—as the Clintons do—in the basic tenets of constitutional democracy, in respect for the law, and the courts, and for neutral processes, Trump is the end of that line. These words that we use, due process and equality and justice have actual force and meaning. They are the tools and also the end product of the entire enterprise of democracy. They are the only bulwark against totalitarianism we know.
Donald Trump has never seen the law as anything beyond another system for self-enrichment. Judges are tools. Laws are malleable. True justice flows in a singular direction: toward him. And Wednesday the entire edifice of the American legal system answers to that vision, unless it opts not to.
Lawyers are by definition small-c conservative, incrementalist, and cautious. We don’t do revolution if a strongly worded footnote would suffice. We believe in facts. We believe in neutral rules and principles of fairness. We believe in judicial independence. We will be more apt than anyone to try to shift along in Trump’s America, doing our best. Hoping to make it a little more just for the weakest around the margins.
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B.A. (English), Yale, 1990, J.D. 1996, Stanford Law School
Ken Paulson. "Trump tweet set Constitution ablaze: Column." USA Today Nov. 29, 2016 http://www.usatoday.com/story/opinion/2016/11/29/flag-burning-donald-trump-tweet-first-amendment-ken-paulsonn/94607674/.
Donald Trump is a master at unsettling the settled in 140 characters or fewer.
In a provocative tweet Tuesday morning, the president-elect declared “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”
As with so many Trump tweets, it’s hard to know whether he’s seriously considering trying to overturn long-established constitutional principles. Sometimes it seems like he’s throwing a rock at a crowd of people just to see them scatter.
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Tweeting proposals has some clear advantages for the president-elect. There’s no need for detailed policy papers and no annoying reporters to ask follow-up questions. One tweet ignites cable television and social media, and suddenly no one’s talking about his cabinet choices or potential business conflicts.
But let’s be clear. This isn’t real. Congress could pass a law punishing flag-burning, but there’s no likelihood the Supreme Court would overturn its 1989 decision or reverse a half-century of protection for symbolic speech.
Justice Antonin Scalia, the man Trump has described as a model for his future Supreme Court appointments, was among the majority that struck down the flag-burning prohibition. Last year, he revisited the decision, drawing on the distinction between his personal views and what the Constitution mandates. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," he said. “But I am not king.”
Justice John Paul Stevens, who voted to uphold the flag-burning ban in 1989, had clearly changed his mind by 2004, when he said, “Burning the flag conveys a far different message than it once did. If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise.”
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There’s some irony in the fact that this nation’s earliest flag desecration laws were designed to in large part to curb the use of the American flag in advertising and marketing. In 1907, the U.S. Supreme Court upheld a Nebraska ban on “Stars and Stripes” beer. Today, flags are ever-present in product marketing and this past summer Budweiser even marketed itself as "America.” Let’s drink to that.
Ken Paulson is the president of the Newseum Institute’s First Amendment Center, dean of the College of Media and Entertainment at Middle Tennessee State University and a member of USA TODAY’s Board of Contributors.
Scott Bomboy. "Justice Antonin Scalia rails again about flag-burning 'weirdoes'." Constitution Daily Nov. 12, 2015 http://blog.constitutioncenter.org/2015/11/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes/.
Supreme Court Justice Antonin Scalia was in Philadelphia last night, making remarks about the Court, a controversial flag-burning ruling from 1989, and diversity among his fellow Justices.
Scalia appeared at a Union League in an event moderated by Princeton University’s Robert George, and as usual, the Justice made comments about the original meaning of the Constitution. And according to reports from the event, Scalia also talked the historic Texas v. Johnson flag-burning decision, which is still debated to this day.
Scalia said as a jurist who believes in a pure texualist reading of the Constitution, he has made some tough calls in his career, especially in free-speech cases where his vote went against his personal principles.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. “But I am not king.”
Scalia made similar comments at a March 2014 appearance in Brooklyn, where he called Gregory Lee Johnson, who brought the 1989 flag-burning lawsuit, a “bearded weirdo.” (He made similar comments at a 2012 appearance in Wyoming, a 2005 appearance at the University of Michigan event and in 2004 at a William and Mary event.)
Back in 1989, Scalia was the fifth and deciding vote in the Texas v. Johnson decision that upheld flag burning in Texas, and a year later, he voted against a federal law that banned flag burning in United States v. Eichman.
Jonathan Chait. "Donald Trump Wants You to Burn the Flag While He Burns the Constitution." Daily Intelligencer, New York Nov. 29 http://nymag.com/daily/intelligencer/2016/11/trump-wants-you-to-burn-flags-while-he-burns-constitution.html.
... But why would he choose to pick this strange fight? Here is a case where the common complaint that he is distracting the public from unflattering stories rings true. Proposing a flag-burning ban is a classic right-wing nationalist distraction, and Trump has a number of ugly stories from which to distract: his plan for massive, unprecedented corruption, the extreme beliefs of his appointees, a controversy over a recount that highlights his clear defeat in the national vote.
Trump does not want coverage of his plans to enrich himself and his family or to strip the safety net. A fight over patriotism and citizenship frames the president-elect as the champion of American nationalism — giving a kind of legitimacy that overcomes his defeat in the national vote, much as standing on the rubble at Ground Zero erased all complaints about George W. Bush governing from the right after losing the national vote. There may not be flag-burners to fight at this very moment, but surely the president highlighting the issue will encourage protesters to burn flags in defiance, drawing media attention. Thus the opposition will demonstrate that their hatred for Trump is actually hatred for the country. And he will proceed to enrich himself and his party’s donor class.
Trump’s flag-burning tweet is a frightening moment not because his proposal stands any chance of enactment, but because it reflects one of the few signs that his dangerous and authoritarian politics is calculated, and not merely crazy.
Stephen Collinson, "Trump takes aim at First Amendment." CNN Nov. 29, 2016 http://www.cnn.com/2016/11/29/politics/donald-trump-first-amendment/index.html.
The early morning blast was classic Trump, picking at an emotive political scar that enlivens his most loyal supporters, hijacking news coverage and forcing everyone in Washington to respond to his own controversial views -- and then wonder if he really means it. It's a tactic familiar from the presidential campaign when Trump's mastery at wielding Twitter as a weapon was at the heart of his battle plan that demolished the Bush and Clinton political dynasties.
"It is pretty remarkable that the President-elect of the United States is calling for penalties, criminal penalties for protected speech," said CNN senior legal analyst Jeffrey Toobin on Tuesday. "Why is he doing this? That is the question. Is he trying to distract attention from something else? I don't know why he would be, his transition seems to be going pretty well. What is the purpose behind this? I don't really get it."
David Axelrod, a CNN political analyst and former strategist for President Barack Obama, encouraged his Twitter followers Tuesday to pay less attention to what Trump says and more to how he behaves.
"Pressing issue of the day? Best to ignore, unless & until it becomes something more than an AM red meat serving from Dr. Trump & Mr. Tweet," Axelrod tweeted.
Still, the spectacle of a President-elect calling for someone to be disowned by their nation for exercising their constitutional rights -- albeit while acting in a way many Americans find distasteful -- is a shocking one.
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